R. v. Horan

R. v. Horan Collection Decisions of the Court of Appeal Date 2008-08-18 Neutral citation 2008 ONCA 589 Docket numbers C47943 Judges Rosenberg, Marc; Armstrong, Robert Patrick; Watt, David Subject Criminal Decision Content CITATION: R. v. Horan, 2008 ONCA 589 DATE: 20080818 DOCKET: C47943 COURT OF APPEAL FOR ONTARIO ROSENBERG, ARMSTRONG and WATT JJ.A. BETWEEN: HER MAJESTY THE QUEEN Appellant and KENNETH HORAN Respondent Lorna Bolton for the appellant Dirk Derstine and Scott Reid for the respondent Heard: June 13, 2008 On appeal from acquittal by Justice Barry G.A. MacDougall of the Superior Court of Justice, sitting with a jury, dated June 11, 2007. ROSENBERG J.A.: [1] This Crown appeal from acquittal involves issues of disclosure, the judge’s trial management power and defence counsel’s jury address. The respondent was tried before MacDougall J. and a jury on charges of robbery, assault with a weapon, and uttering death threats. [2] The case turned on the credibility of the two complainants, Thomas McPhail and his 19-year old son, Matthew. The defence attempted to paint the McPhails as incredible and unreliable witnesses, being drug users and, in the case of Matthew, an admitted liar. The Crown argues that the trial judge made several errors: excluding certain medical evidence to explain one of Thomas’s injuries; refusing to permit the Crown to embark on a voir dire to admit a mostly exculpatory statement given by the respondent to the police; and failing to provide corrective instructions in light of an improper and inflammatory jury address by defence counsel. [3] For the following reasons, I would dismiss the appeal. THE FACTS [4] The prosecution version of events largely depends upon the narrative from the two complainants. On July 31, 2006, the complainants met up with the respondent at the home of a drug dealer, Donnie Smaglinski. Thomas sent his son into Donnie’s home to purchase some crack cocaine. When Matthew emerged with the drugs, he was accompanied by the respondent. The complainants had stored some property, including a computer, at the respondent’s home and the respondent insisted that the complainants come to his home to fix the computer. Once at the home, Matthew examined the computer while Thomas went to the kitchen for some water. Matthew immediately realized that the computer was not plugged in. Once he plugged it in, it began to operate and as he turned to tell the respondent the computer was working, the respondent struck him in the arm with a three-foot long table leg that had a three-inch long bolt protruding from it. [5] The respondent then went to the kitchen where he began to hit Thomas about the ribs, head, arms and leg with the table leg. During the attack the respondent accused Thomas of “ripping him off” and “ripping off” Ruby MacKay, who was a friend of the respondent’s. Matthew attempted to intervene in the attack on his father but the respondent pushed him out of the way and threatened him. Matthew also called on the respondent’s common-law spouse to intervene but she refused. In the course of the attack Thomas’ ring fell off his finger. The respondent ordered Thomas to leave the ring and empty his pockets. The respondent took some cash and the crack cocaine that had been purchased at Donnie’s home. After threatening to kill the complainants if they went to the police or tried to retaliate, the respondent allowed them to leave. [6] It was unclear whether the complainants went immediately to the hospital. Thomas thought they went home first; Matthew could not remember. In any event, by 12:35 a.m. on August 1, 2006, the complainants were at the hospital where they were seen by an emergency room physician, Dr. Reid. Matthew had injuries to his left arm that did not require any sutures. Thomas’ injuries were more substantial. He had bruising on his right arm, his clavicle bone was tender and ballotable (i.e. it moved up and down), he had a laceration extending from his forehead into his hairline that required staples and sutures and he was complaining of having difficulty breathing and feeling faint and dizzy. His chest wall was tender and his ribs were bruised. Dr. Reid ordered x-rays but they did not show any displaced fractures or a pneumothorax (collapsed lung). The admissibility of some of Dr. Reid’s evidence concerning this x-ray forms the first ground of appeal and I will outline her evidence in further detail when I deal with that ground of appeal. [7] Ruby MacKay was called by Crown counsel. She testified that some time in early August the respondent told her he had been in a fight with the complainants in which he had used a table leg. He told her that when he hit Thomas with the table leg, his ring flew off his finger. She said that Thomas had started the fight and the fight was over the respondent’s belief that Thomas had stolen some “pot” from him. She also testified in cross-examination that some time later in August, Thomas’s acquaintance, Paul Calver, telephoned her. She could hear Thomas in the background telling Calver what to say. Thomas was saying he had biker connections and people should be aware of what they say and do. While Thomas, through Calver, was telling her what to say at the trial, she did not provide any details in her testimony of what he told her. [8] The respondent’s defence was that the complainants fabricated their evidence of the attack by him. His common-law spouse testified that while there was a discussion between the respondent and the complainants about some money that the complainants owed him for storing their belongings, there was no physical altercation. Another defence witness, who claimed to have been at Donnie’s house on July 31, testified that in fact the complainants returned to Donnie’s house sometime after the initial drug purchase by Matthew and at that time they were uninjured. [9] With the exception of the medical and police witnesses, all of the prosecution and defence witnesses had potential credibility issues. The complainants were crack cocaine users and Thomas used his son Matthew to purchase drugs for him. Matthew admitted lying about his drug use at the preliminary inquiry. He also changed his evidence about his father’s ring. At the preliminary inquiry he testified it was a sapphire ring, but after talking to his father he learned the ring had an onyx stone, and testified to that effect at the trial. [10] The defence witnesses also had credibility problems. They were part of the same subculture as the respondent and the complainants. The respondent’s common-law spouse had a criminal record and she admitted lying to the police when she was interviewed about the attack. The other defence witness was a crack cocaine user and at the time of the trial was facing charges arising out of an attack on her ex-boyfriend. She too admitted lying to the police when she was interviewed about the events of July 31. ANALYSIS (1) The Disclosure Issue (a) How the issue developed [11] As I have indicated, when Thomas was x-rayed at the hospital on the early morning of August 1, the x-ray did not show a collapsed lung. The only x-ray was taken while Thomas was lying down. He returned to the hospital on August 16 because he continued to have difficulty breathing. He was seen at this time by Dr. Joyce who ordered further x-rays. This time x-rays were taken while he was in various positions. Thomas testified that Dr. Joyce compared the two sets of x-rays in his presence and told him that Dr. Reid had missed seeing that Thomas had a collapsed lung. On consent, the two radiology reports relating to the August 1 and August 16 x-rays were filed as exhibits during Thomas’ evidence. Defence counsel cross-examined Thomas and suggested to him that he had been in an altercation between the two hospital visits. Thomas denied the suggestion. This cross-examination took place on the second day of trial, June 5, 2007. [12] The following day, defence counsel concluded his cross-examination of Thomas and Crown counsel re-examined the witness. In the absence of the jury, defence counsel then raised what he termed “disclosure issues” concerning Dr. Reid. He complained that about three weeks earlier, the investigating officer had interviewed Dr. Reid and taken a videotaped statement. While he had been given a summary of the interview, he had just been given a copy of the actual videotape that morning. Second, Crown counsel had interviewed Dr. Reid the previous night and just provided him with notes of the interview that morning. Defence counsel asked for an order precluding Dr. Reid from testifying because the Crown had breached its Stinchcombe (R. v. Stinchcombe (1991), 68 C.C.C. (3d) 1 (S.C.C.)) disclosure obligations. [13] In the ensuing discussion between counsel and the trial judge, the dispute seemed to narrow down to two matters, which the defence characterized as opinion evidence. First, whether Dr. Reid should be allowed to explain a phrase in the first radiology report: “Limited views only could be obtained as the patient was uncooperative.” Second, whether Dr. Reid could explain why the radiologist did not see the collapsed lung on the August 1 x-ray. It seems that Crown counsel had asked Dr. Reid about these two matters the night before as a result of the suggestion from defence counsel to Thomas that he had been in a fight between the two hospital visits. [14] To appreciate the controversy, it is necessary to reproduce a part of the radiology report: RIGHT CLAVICLE AND HUMERUS Limited views only could be obtained as the patient was uncooperative. No abnormalities demonstrated. CHEST, SUPINE The heart size and shape is within normal limits. Mediastinal contour is normal. Lungs are clear. No pneumothorax. No fracture is identified. [15] According to Crown counsel, Dr. Reid would explain that “uncooperative” simply meant that the patient was physically incapable of moving into the proper position for the x-ray because of the pain he was in. Second, she would explain that unless the collapsed lung was extremely large it would not be detected from an x-ray taken when Thomas was in the supine position. Following the second set of x-rays, Thomas was diagnosed with a “moderate pneumothorax”. [16] Defence counsel’s opposition to the admissibility of these parts of Dr. Reid’s evidence seemed to centre on the 30-day notice period required by s. 657.3 of the Criminal Code where a party intends to call expert evidence. He also pointed out that the respondent was in custody and he would be prejudiced by an adjournment of the trial, especially a 30-day adjournment. Defence counsel acknowledged that he had spoken to Dr. Reid the morning of June 5, but he does not seem to have raised with her the issue of the reason why the collapsed lung was only revealed in the August 16 x-ray. [17] The trial judge ruled that Dr. Reid could only give evidence about her own observations and could not explain the terms “uncooperative” or “supine” on the radiologist’s report nor “the results of the two radiologists’ reports”. The trial judge gave as his reason that these matters should have been disclosed to the defence at an earlier date. [18] After a brief adjournment, in an attempt to either clarify the ruling or narrow it, Crown counsel asked if he could question Dr. Reid about how she expected the x-rays to be taken and why it was significant that the radiologist report used the term “supine” in relation to the chest. Defence counsel continued to oppose allowing Dr. Reid to testify in any way about the purpose of the x-rays or the manner in which they were to be taken. The trial judge ruled as follows: I consider it more a disclosure issue, counsel. I certainly understand why the Crown wants to get this information in – at least part of it in, in any event – because, on the face of it, these two radiologists’ reports are different and beg the questions as to why that is so. Therefore, it would seem to me it was incumbent upon the Crown to have that explained, either by the radiologist or by the doctor. It may have been that Doctor Reid could have, as a result of the information in the Emergency Report, provided some details of what she was expecting to be done when she ordered the chest x-ray, but that disclosure was not made. Therefore, I am not going to allow her to testify as to what she expected to happen when she ordered the chest x-ray. [Emphasis added.] [19] Crown counsel continued to argue with the trial judge and made submissions indicating that he had expected the trial to begin a week later and suggesting that the defence would have enough time to respond to Dr. Reid’s new evidence if the matter were adjourned for a day. The trial judge, without calling on defence counsel to respond, gave a third ruling in which he confirmed his earlier view that this was a disclosure matter. He also addressed the question of whether a brief adjournment could remedy this disclosure issue: Under the circumstances, given the fact that the defendant is in custody and this is a relatively short trial and it is a jury matter, I am not going to hold the matter down for a day. I do not think anything could be accomplished in any event by doing that. So the doctor’s evidence will be restricted accordingly. [20] Dr. Reid testified and her evidence was limited in accordance with the trial judge’s ruling. Later in the trial, an agreed statement of facts relating to the evidence of Dr. Vaughan, the radiologist who reviewed the x-rays, was placed before the jury. The agreed statement of facts sets out that the August 16 x-ray was done while the patient was in an upright position and that the August 1 chest x-ray was done “while the patient was in the supine position or lying down”. No information was provided to the jury as to the significance of the different positions. [21] To complete the picture, defence counsel said the following in his jury address: All Doctor Reid established was that there were injuries. This is hardly confirmatory evidence. This doesn’t corroborate anything that the McPhails say. Doctor Vaughan tells us about the various positions that Tom was in for the two x-rays. Now the prosecutor is going to stand here and he is going to suggest to you that that difference in position may account for why the first set of x-rays did not show a collapsed lung and did not show a fractured rib, whereas the second x-ray, two weeks later, did. There is no evidence that that is the case. The judge is going to tell you not to speculate, but the Crown is going to stand right here and ask you to do just that. What is the simplest explanation for why the two x-rays are different? The simplest explanation is usually the best one. Well, what is it? It’s that there was no collapsed lung on August 2nd when he had the first x-ray; that there was no fractured rib when he had that first x-ray, that something else happened after. [Emphasis added.] [22] In his jury address, Crown counsel merely reviewed the medical evidence and simply asked the jury to consider that evidence carefully. He did not invite the jury to speculate as to the reason for the difference in the two sets of x-rays. [23] Finally, in reviewing the position of the defence in his charge to the jury, the trial judge said the following: When the first x-ray was done, it did not show any rib fracture or a collapsed lung, suggesting that something else happened to Thomas in between the date of the two x-rays. (b) Analysis of the disclosure issue [24] In Stinchcombe, Sopinka J. identified two fundamental purposes of disclosure. First, he noted at p. 6 that the experience from the civil discovery regime demonstrated that “justice was better served when the element of surprise was eliminated from the trial and the parties were prepared to address issues on the basis of complete information of the case to be met”. He then went on to explain why, because of different interests engaged in a criminal case, there was a principled basis for only requiring disclosure from the Crown. [25] Second, at p. 9, Sopinka J. identified the “overriding concern that failure to disclose impedes the ability of the accused to make full answer and defence”. He then pointed out that this common law right had acquired a constitutional dimension as a result of the inclusion of the fundamental justice guarantee in s. 7 of the Canadian Charter of Rights and Freedoms. Further, the then recent findings of the Royal Commission on the Donald Marshall, Jr., prosecution had shown that lack of disclosure was an important factor in the conviction of an innocent man: see Nova Scotia, Royal Commission on the Donald Marshall, Jr., Prosecution, Vol. 1: Findings and Recommendations (Nova Scotia: Queen’s Printer, 1989). [26] Since Stinchcombe, there have been many decisions from courts of all levels respecting the Crown’s disclosure obligations. This process has not been without its problems and controversies. This case is not the opportunity to attempt to rationalize all those decisions. But, it seems to me that when a court is faced with an allegation of non-disclosure especially where the allegation comes up in the middle of the trial and threatens to derail the proceedings, it would be helpful to bear in mind the purposes identified by Sopinka J. in Stinchcombe. Put simply, disclosure is a means to an end. Full prosecution disclosure is to ensure that the accused receives a fair trial, that the accused has an adequate opportunity to respond to the prosecution case and that in the result the verdict is a reliable one. However, Stinchcombe has not completely overhauled the paradigm of the adversary process in which trials are dynamic and as events unfold, prosecution and defence may find that they have to respond quickly to changes in strategy and changes from the expected testimony of witnesses. [27] In my view, for the following reasons the trial judge mischaracterized the issue relating to Dr. Reid as a disclosure issue. One cardinal principle of the disclosure obligation is that, subject to issues of privilege, the Crown is required to produce all relevant information in its possession. Since Stinchcombe, the courts have taken a very broad view of relevancy and repeatedly urged the Crown to err on the side of disclosure: see e.g. R. v. Wilson (1994), 87 C.C.C. (3d) 115 (Ont. C.A. ). However, the Crown cannot be expected to disclose information before trial whose relevancy first becomes apparent during the trial itself and the prosecution cannot be expected to disclose what it does not have. As was accepted in Wilson at p. 120, “The Crown cannot be held to a standard of clairvoyance.” [28] There is no dispute that in this case Crown counsel only obtained the information about the significance of the term “uncooperative” and the possible explanation for the collapsed lung not being detected on the first x-ray after court on June 5. He immediately disclosed this information to defence counsel the following morning. In my view, Crown counsel was not in breach of his disclosure obligations. I might take a different view if there was evidence that Crown counsel deliberately refrained from making inquiries because of a fear of what would be revealed or what he would then be required to disclose. That situation, akin to wilful blindness, might well trigger an obligation on Crown counsel to make inquiries and, having failed to do so, make counsel in breach of his disclosure obligations. I would leave that issue for another day. The fact remains there was no evidence in this case that Crown counsel deliberately or even recklessly failed to make inquiries that would have led to Dr. Reid’s additional evidence. In my view, it follows that Crown counsel was not in breach of his disclosure obligations and whatever remedy was warranted by the mid-trial disclosure of the disputed portion of Dr. Reid’s evidence could not be founded on disclosure principles. [29] Even if this was a disclosure issue, in my view, the remedy granted by the trial judge was inappropriate. In oral argument in this court, counsel for the respondent returned to s. 657.3 of the Criminal Code. That relatively new provision provides that, “For the purpose of promoting the fair, orderly and efficient presentation of the testimony of witnesses”, a party calling an expert witness must, at least thirty days before trial, “or within any other period fixed by the justice or judge”, provide the name of the witness, a description of the witness’s area of expertise and a statement of the qualifications of the proposed witness “as an expert”. There is an additional obligation on Crown counsel to provide a copy of any report prepared by the witness or, if there is no report, a summary of the anticipated opinion of the expert “within a reasonable period before trial”. If the prosecution has not complied with these obligations, under subsection (4) the trial judge may grant an adjournment and order compliance with the provision. Subsection (5) gives the trial judge additional powers where there has been some compliance but the other party has not been able to adequately prepare. For example, the trial judge may order further particulars or order the calling or recalling of any witness. However, s. 657.3 does not give the trial judge the power to refuse to allow the expert witness to testify. Thus, the remedy granted by the trial judge in this case was not authorized by s. 657.3. [30] Where a breach of the Crown’s disclosure obligation is made out to the extent that the accused’s s. 7 Charter right to make full answer and defence has been infringed, trial judges have at their disposal an arsenal of remedies ranging from a stay of proceedings in the most egregious cases, to ordering disclosure and subsidiary remedies such as ordering costs against the prosecution or adjourning the proceedings. Further, in an appropriate case, the trial judge has the power to give the remedy adopted in this case of excluding the undisclosed evidence: see R. v. O’Connor (1995), 103 C.C.C. (3d) 1 (S.C.C.) at para. 66, approving the use of innovative remedies as appropriate, including exclusion of evidence, as was done in R. v. Xenos (1991), 70 C.C.C. (3d) 362 (Que. C.A. ). [31] Any remedy for breach of the disclosure obligation must be responsive to the breach; the remedy must, in the words of s. 24(1), be “appropriate and just in the circumstances”. In most cases, the appropriate remedy is to order disclosure and, if necessary, adjourn the case to allow the defence to conduct whatever further preparation or investigation may be necessitated by the disclosure. In some cases, an adjournment may not be an appropriate or just remedy if the result would be to unreasonably delay the trial of an in-custody accused. In such a case, an appropriate remedy could be exclusion of the undisclosed evidence. However, the burden is on the accused to demonstrate that exclusion of the evidence was appropriate. [32] Assuming there was a breach of the prosecution’s disclosure obligation, on this record, the remedy granted by the trial judge was unreasonable. The information the Crown sought to obtain from Dr. Reid was limited and relatively straight-forward. At the point where the issue arose there was no indication that a very brief adjournment or holding down Dr. Reid’s evidence until later in the trial would not have sufficed. If defence counsel was able to demonstrate that he required further time to investigate or that he could not obtain expert advice to meet Dr. Reid’s additional evidence, the trial judge would be in a position to consider whether the appropriate remedy was to exclude that part of Dr. Reid’s evidence. In making that determination, the trial judge would have to bear in mind the objectives of disclosure to which I alluded earlier. Was this remedy appropriate to prevent the respondent from potentially being deprived of his right to make full answer and defence? Put another way did the justice of the case require that this evidence be excluded because the accused was not able to address the issue on the basis of complete information of the case to be met? [33] As I have said, I do not consider that this was a disclosure issue. That, however, did not prevent the trial judge from exercising his power to manage the trial. In R. v. Felderhof (2003), 180 C.C.C. (3d) 498 (Ont. C.A. ) at para. 57, this court recognized a broad trial management power to promote the efficient use of court time and ensure that all parties are treated fairly. However, excluding relevant and otherwise admissible evidence is an unusual exercise of the trial management power and, in my view, it should be plain and obvious that the circumstances require that remedy and that the usual remedies, such as a short adjournment, would not suffice. On this record, for the same reasons that a Charter remedy of exclusion of evidence was not made out, in my view, exclusion of Dr. Reid’s additional evidence was not justified to manage the trial. [34] There is one further issue: whatever remedy is adopted, it should not lead to a distortion of the trial or leave the trier of fact with a misleading picture. In this case, I have two concerns in that regard. First, the trial judge’s ruling that Dr. Reid could not explain the term “uncooperative” in the x-ray context meant that the jury would naturally adopt the lay definition of the word and thus possibly be left with the misleading impression that Thomas had not cooperated with the x-ray technician. [35] Second, defence counsel was permitted to tell the jury that the “simplest explanation” for the difference in the two x-rays was that “something else happened after [the first x-ray]”. The impact of this potentially misleading statement was exacerbated when it was repeated by the trial judge in his charge to the jury. [36] To conclude, in my view, the trial judge erred in refusing to permit Dr. Reid to testify about the meaning of “uncooperative” and the possible explanation for the fact that the August 1 x-ray did not detect a collapsed lung. I will consider the impact of this error after I have dealt with the Crown’s other grounds of appeal. (2) Exclusion of the respondent’s statement to the police (a) How the issue developed [37] As with Dr. Reid’s evidence, some review of the chronology is necessary to understand the ground of appeal relating to the trial judge’s decision to exclude the respondent’s statement to the police. On August 2,, 2006, two days after the alleged assault, the respondent provided a videotaped statement to the police. Although the statement was largely exculpatory, it did contain some parts that might have assisted the prosecution case. For example, the respondent acknowledged that the McPhails had been at his home, that there was a problem with the computer which Matthew fixed and that he had just seen Ruby MacKay and he believed Thomas had stolen money from her. [38] At the judicial pre-trial, Crown counsel indicated that he would not be leading the statement as part of the Crown’s case, but would be seeking a ruling that the statement was admissible so that it would be available for cross-examination of the respondent. At the opening of the trial on Monday, June 4, when counsel were discussing timing issues, defence counsel repeated that this was still his understanding of the Crown’s position. Defence counsel stated that if that was the case there would have to be a voir dire. Crown counsel did not respond and did not indicate whether he would require a finding that the statement was voluntary. The trial then continued with jury selection. [39] At the end of proceedings on Wednesday, June 6, Crown counsel in the absence of the jury stated that he understood that if the Crown was not introducing the statement as part of the Crown’s case a voir dire would not be necessary since the defence would not be contesting the admissibility or voluntariness of the statement. Crown counsel then stated that he was not going to introduce the statement as part of its case. Accordingly, there would be no need for a voir dire. [40] However, by the next day, the Crown had changed its position. It appears that Crown counsel had decided not to call Ruby MacKay and instead now wanted to lead the respondent’s statement to the police. He acknowledged that there would now have to be a voir dire since the defence had only conceded the statement was admissible if it was only going to be used to cross-examine the respondent. Defence counsel objected to the Crown being permitted to resile from its position. The trial judge ruled as follows: I am not going to permit the Crown to resile from that position. It is significant when the Crown takes a position on a case. It is significant, of course, when the Crown goes on the record as, “This is my position.” The Defence is entitled to rely on that and plan its strategy and its decisions as to what they are going to do in terms of how they are going to approach defending the case. I am not satisfied that there are any unusual circumstances to permit the Crown to resile from that position. So the Crown is going to be held to that position. [Emphasis added.] [41] As a result of this ruling, Crown counsel then reversed his decision and said he now wanted to call Ruby MacKay. Defence counsel also objected to this change in the Crown’s position. The trial judge ruled, however, that she could be called, especially bearing in mind that the defence was aware that the Crown had always intended to call Ms. MacKay. (b) Analysis of the statement issue [42] In my view, the trial judge did not err in refusing to permit Crown counsel to lead the respondent’s statement to the police. Unlike Dr. Reid’s evidence, the respondent’s statement to the police was presumptively inadmissible. Accordingly, Rule 30 of the Superior Court of Justice Criminal Proceedings Rules, S.I./92-99, applied and the Crown was inter alia required to give notice of its intention to admit this evidence. Moreover, this was not a case where no notice or insufficient notice had been given; Crown counsel had indicated on more than one occasion that he did not intend to lead the statement as part of his case. The respondent and the trial judge were entitled to rely upon that position and conduct the trial accordingly. By the time Crown counsel indicated his change in position the principal Crown witnesses had testified. Crown counsel’s change in position could have resulted in unnecessary disruption of the trial and at least an unfortunate delay in the trial while the voir dire was conducted. [43] In any event, the appellant has not established that the exclusion of the statement could have affected the verdict. As a result of the trial judge’s ruling, Crown counsel reversed his position and called Ruby MacKay. She was not a particularly friendly witness for the Crown and yet she testified to a highly incriminating statement by the respondent. As indicated above, she testified that the respondent admitted hitting Thomas with a table leg and that his ring flew off his hand. That statement was much more probative of guilt than the respondent’s exculpatory statement to the police, and corroborated the stories of the McPhails in important respects. (3) The Defence Jury Address [44] In her factum, counsel for the appellant raised a number of issues respecting the propriety of defence counsel’s jury address. Several of them, such as some misstatements of the evidence are of little consequence. Since defence counsel addressed the jury first, Crown counsel had the opportunity to correct the misstatements in his jury address. The trial judge’s review of the facts was accurate. [45] Other matters raised by the appellant are more problematic and I will deal with them in greater detail. (a) The Vetrovec issue [46] The appellant submits that since the trial judge had ruled that he would not give a Vetrovec (R. v. Vetrovec (1982), 67 C.C.C. (2d) 1 (S.C.C.)) warning in relation to the complainants, defence counsel should not have been permitted to tell the jury that they should treat the evidence of the complainants with extreme caution and that it would be very dangerous to act on their evidence alone. [47] The decision of the Supreme Court of Canada in Vetrovec concerns the duty of the trial judge to warn the jury that it is dangerous to act on the unconfirmed evidence of a suspect witness. The fact that the trial judge concluded that a Vetrovec warning was not required in this case did not prevent defence counsel from making the submission that it was the defence position that the unconfirmed evidence of the complainants should not be relied upon. [48] Defence counsel in opening to the jury pointed out the different roles of counsel and the trial judge and that the jury “must accept what [the trial judge] says on the law”. In the impugned portion of defence counsel’s jury address, he never suggested that he was telling the jury that as a matter of law it was dangerous to act on the evidence of the complainants. The jury would understand this portion of the address for what it was, a partisan argument as to why the respondent should be acquitted. (b) The complainants’ character [49] The appellant submits that defence counsel should not have been permitted to dwell on the fact that Thomas had his son purchase crack cocaine for him. Counsel says that the fact that Thomas may have been a bad parent could not legitimately affect his credibility. [50] In my view, defence counsel’s submission in this respect was within the bounds of legitimate argument. Counsel was not inviting the jury to pass judgment on Thomas’ parenting abilities, but rather making a reasonable argument that as a person of bad character he should not be believed. The complainants’ drug use was an important aspect of this case. The complainants admitted using and sharing crack cocaine, the latter being acts of trafficking,[1] and doing so on the day of the alleged attack. It was open to the defence to argue that their evidence was unreliable because of the drug use on that day and that, as persons engaged in criminal conduct, they were not credible: see R. v. Bradbury (1973), 14 C.C.C. (2d) 139 (Ont. C.A. ). [51] In a related submission, the appellant submits that defence counsel should not have been permitted to refer to Thomas as a “crackhead” and both complainants as “cracked-out liars”. The appellant submits that witnesses, no matter what their standing in the community, are entitled to be treated with respect and that submissions such as these can have the effect of further marginalizing already vulnerable members of the community such as drug users. She submits that such terms are designed to inflame the sentiments of the jury and could leave the impression that such people are less worthy of protection by the law. [52] I agree with the appellant that terms such as “crackhead” that unnecessarily denigrate witnesses should be avoided. In particular, I agree that the following part of defence counsel’s jury address was improper: At the end of it all, what are you left with? Strip away all the lies. Strip away all the rhetoric. Strip away all the various stories, and what’s left? What’s left is that a 250-pound man, he’s very strong, is alleged to have taken a grand-slam swing at a 125-pound crackhead skull, resulting in minor injuries. I suggest to you, if Ken Horan had taken a full swing, a grand-slam swing, to Tom McPhail’s head, Tom McPhail would have at least been knocked unconscious. [Emphasis added.] [53] This comment, which suggests that drug users are less worthy of protection by the law, is improper and potentially inflammatory. Defence counsel could make his point just as effectively without resort to this kind of excessive rhetoric. [54] The other comment of “two cracked-out liars” is, in my view, less objectionable. As I have said, the fact that the complainants were using crack cocaine the day of the attack was a legitimate basis for undermining their credibility. While the term “cracked-out”, which defence counsel seems to have invented, is somewhat excessive, in the context of this case and tied as it was to credibility, it would not have had the effect of inflaming the jury or diverting them from their task of deciding the case on the evidence. The defence witnesses were in much the same position as the complainants. In fact, one of the important defence witnesses admitted using and trafficking in crack cocaine on the night of the assault. Unlike the “cracked skull” comment, this comment was not a suggestion that the complainants were less worthy of protection only, that they were less credible. [55] To conclude on the character issue, while the “crackhead skull” comment was unnecessary and improper, in my view it was not sufficiently serious that the prosecution was deprived of a fair trial. Most of the “crack” language used by defence counsel was part of a legitimate attack on the credibility of the complainants. (c) The role of Crown counsel [56] In my view, the most serious concerns with the jury address relate to the attack on Crown counsel. The appellant submits that in his jury address, defence counsel repeatedly denigrated the role of the Crown by suggesting that prosecutors will say or do anything to win a case, even suborn perjury. This submission is based on these aspects of defence counsel’s jury address: What do you think about the strength of the prosecutor’s case, that he has to resort to witnesses like this to try and convict someone? The prosecutor presented these types of witnesses to you. He is asking you to convict a man, based on this type of evidence. How does that make you feel? How does it make you feel that the prosecutor will stand up here, in front of your face, and have the audacity to ask the twelve of you to believe those people? He’s going to stand up here very shortly, and he’s going to say these are minor things. He’s going to say, for instance, that Matt lied about his drug use because he was scared of telling [on] people who sold him the drugs; he didn’t want to reveal that information. Well, ask yourselves this: Did he provide that information? Did he say who sold him the drugs? He said it wasn’t Donnie. He just said it was some black gentleman who was at Donnie’s house. He didn’t give up any information, did he? So what is he scared of? The prosecutor will also likely stand here and tell you that the inconsistencies between Tom and Matt aren’t very relevant. Prosecutors like to say that, at least in respect to Crown witnesses. They like to sing a different tune when talking about defence witnesses. And this prosecutor will likely be no different from all the others. They like to say things like, “Well, the timing of the events doesn’t matter. What matters is that they’re consistent that some sort of assault took place.” Well, when two witnesses who both claim to have been involved in the exact same incident have such diametrically opposed stories, how can that possibly be a minor thing? As they say, “The devil’s in the details.” … These two so-called witnesses should probably face charges for perjury, obstruction, and contempt of court. Instead the prosecutor is going to ask you to believe them. [Emphasis added.] [57] To the extent that defence counsel was suggesting that Crown counsel was suborning perjury or that he, like all prosecutors, will go to any lengths, including resort to unfair or illegal tactics, to obtain a conviction, the comments were unfair and improper: see Felderhof at para. 79. There was absolutely nothing in the record to support these implied allegations of misconduct. Although the following comment from R. v. Siu (1998), 124 C.C.C. (3d) 301 (B.C.C.A.) at para. 70, was said in relation to Crown counsel’s address, it applies with equal force to defence counsel: It is the proper role of the advocate to attack the evidence, or arguments based on the evidence, or the lack of evidence. But it is no part of the advocate’s role to malign defence counsel, or to suggest that counsel’s conduct is deceptive and dishonourable. If there were any foundation to such suggestions, there are proper avenues in which to pursue them. It is not a proper avenue to argue such matters to the jury. [Emphasis added.] [58] As Lang J.A. said speaking for this court in R. v. Trakas, 2008 ONCA 410 at para. 32, defence counsel has no right to mount a personal attack on the integrity of Crown counsel before the jury: However, while the defence was entitled to comment on the Crown’s tactics on these issues, it was not entitled to suggest that the Crown attorneys personally showed a lack of integrity in arriving at that strategy. This is so for a number of reasons, most importantly because the trial was not about the personal integrity of the Crown attorneys, who would not be in a position in any event to respond to such allegations. To the contrary, the jury’s mandate was to decide whether the Crown had established its case against the respondent and not to weigh and compare the integrity of the Crown and the defence. If the defence wanted to challenge the Crown’s integrity, it could have sought an abuse of process ruling. It did not. See Cook, para. 58. Accordingly, the question is whether the defence attacks on the “prosecution” in this case amounted to an attack on the Crown’s strategy and tactics or whether they amounted to an attack on the personal integrity of the Crown attorneys. The former is permissible; the latter is not. [Emphasis added.] [59] In Trakas, Crown counsel sought a mistrial by reason of the defence jury address. After lengthy submissions, the trial judge ruled against the mistrial but then cautioned the jury about defence counsel’s comments. [60] In this case, Crown counsel objected to these comments, as he did to the other matters raised by the appellant. The trial judge did not give any ruling on Crown counsel’s objections to the jury address. On the other hand, it is not entirely clear what Crown counsel wanted the trial judge to do about the impugned comments. He did not ask for a mistrial; it may be that he was seeking some kind of corrective instruction. However, no instruction was given and Crown counsel did not raise any of these matters in his objections to the charge. I am not persuaded that the impugned comments so undermined the role of Crown counsel that the prosecution did not receive a fair trial. While excessive, the rhetoric was part of a reasonable argument that the prosecution case stood or fell on the evidence of the McPhails who, in the defence’s submission, should not be believed. (d) The trial judge’s warning [61] In cross-examining Matthew, defence counsel was able to get him to concede that after the preliminary inquiry he spoke to his father and realized that he had erred in his description of his father’s ring. Defence counsel attempted to place a particularly sinister spin on this evidence by suggesting that the witnesses were warned by the judge at the conclusion of the preliminary inquiry not to speak to each other about the case before trial. Before the jury addresses, the trial judge raised the issue with counsel and told him that he could not find that any such warning had been given and that he intended to tell the jury that there is no evidence Matthew was given any warning. Defence counsel agreed that this was fair. [62] Counsel for the appellant submits that it was improper for defence counsel to have made the suggestion in cross-examination in the first place and then to suggest in his jury address that Thomas and Matthew should face charges of “obstruction and contempt of court”. Counsel for the appellant submits that the jury would naturally understand that this reference to obstruction and contempt of court relates to the warning incident. [63] It is difficult to fathom why defence counsel, having acknowledged he was in error in suggesting that the preliminary inquiry judge had warned Matthew not to discuss his evidence, would then in effect go on to allege Matthew was in contempt of court. On the other hand, the trial judge did expressly deal with the preliminary inquiry issue. He told the jury that there was no evidence that the judge told Matthew not to discuss the case. [64] In those circumstances, defence counsel’s comment was relatively harmless. (e) The wrongful convictions issue [65] Finally, the appellant complains about this comment from defence counsel’s jury address: Relying on the evidence of the McPhails, without more, in my respectful submission, would risk yet [another] wrongful conviction in Canada ’s parade of wrongful convictions. Those were the witnesses for the prosecutor. That’s the best he had. [Emphasis added.] [66] This submission by the appellant raises a matter of some difficulty. It seems to have become commonplace for defence counsel to refer in one way or another to the growing number of demonstrated wrongful convictions. Indeed, the Supreme Court of Canada has recognized the spectre of wrongful convictions, most recently in R. v. Trochym (2007), 216 C.C.C. (3d) 225 (S.C.C.), where Deschamps J. began her reasons with the following statement: In recent years, a number of public inquiries have highlighted the importance of safeguarding the criminal justice system – and protecting the accused who are tried under it – from the possibility of wrongful conviction. As this Court has previously noted, “[t]he names of Marshall, Milgaard, Morin, Sophonow and Parsons signal prudence and caution in a murder case”: United States v. Burns, [2001] 1 S.C.R. 283, 2001 SCC 7, at para. 1. In the case at bar, we consider once again the need to carefully scrutinize evidence presented against an accused for reliability and prejudicial effect, and to ensure the basic fairness of the criminal process. [67] Moreover, it is now a standard part of the jury instructions relating to identification evidence to expressly draw to the jury’s attention that there have been past miscarriages of justice and wrongful convictions because of mistakes by eyewitnesses. On the other hand, reference in a jury address to a parade of wrongful convictions outside a relevant context, such as the established phenomenon of eyewitness identification, risks inviting the jury to take into account irrelevant considerations and imaginary dangers: see R. v. Trakas at paras. 22-23. The invitation to avoid convicting so as not to add to the list of the wrongfully convicted is a form of intimidation that can be compared to the “timid juror” instruction[2] disapproved of by this court. [68] In R. v. Karthiresu (2000), 129 O.A.C. 291 at paras. 8-9 this court noted the danger in a trial judge giving the timid juror direction as part of the definition of reasonable doubt because of the implication that jurors who acquit are timid and avoiding their responsibilities. Similarly, reference to a parade of wrongful convictions risks inviting jurors not to convict despite the absence of reasonable doubt because of the possibility, which is not based on anything in the evidence in the particular case, that this accused might later be found to be innocent. [69] It seems to me that the following guidelines might assist when defence counsel wishes to raise the impact of wrongful convictions. 1. A passing reference to the potential of wrongful conviction in any criminal case is not beyond the bounds of legitimate argument. For example, reminding the jury that they stand between the accused and the state to prevent the conviction of an innocent accused or that their responsibility is to protect persons from the possibility of a wrongful conviction is well within the bounds of legitimate argument. 2. Ordinarily, a reference to the history in Canada of demonstrated wrongful convictions will not assist the jury in their task. The jury is to reach its verdict on the evidence adduced in the case before them. In particular, defence counsel should not overstate the problem of wrongful convictions. For example, there is nothing in our legal history to support the suggestion that there has been a “parade” of wrongful convictions as a result of complaints by drug users, which essentially was the submission made by defence counsel in this case. 3. Counsel ought not to refer to specific cases such as the wrongful convictions of Guy Paul Morin or Thomas Sophonow or attempt to draw parallels with those cases. The circumstances that led to the miscarriages of justice in those cases were complex and multifaceted. Those circumstances will almost inevitably be quite different from the circumstances of the case the jury must deal with. For example, the wrongful convictions in Morin and Sophonow were the result, in part, of a particular type of unreliable witness, jailhouse informants. To refer to specific cases by name simply risks introducing irrelevant considerations and may draw counsel into giving evidence. 4. In eyewitness identification cases it is not improper for defence counsel to refer to the fact that there have been wrongful convictions because of mistaken eyewitness evidence. [70] In my view, while defence counsel should not have made the improper and excessive comments, and especially not referred to a parade of wrongful convictions, I am not convinced that this comment rendered the trial unfair. I have not been persuaded that the impugned comments so distorted the trial as to render the verdict unsafe. CONCLUSION [71] On a Crown appeal from acquittal the appellant must satisfy this court that the verdict would not necessarily have been the same if the jury had been properly instructed or the excluded evidence admitted. In R. v. Morin (1988), 44 C.C.C. (3d) 193 (S.C.C.) at 221, Sopinka J. described the onus on the Crown as “a heavy one”. He continued that the accused should not be deprived of an acquittal and sent back for another trial unless the error “was such that there is a reasonable degree of certainty that the outcome may well have been affected by it”. [72] The application of that test in this case is difficult. In my view, the only error of substance in this case concerns the exclusion of a portion of Dr. Reid’s evidence. The principal effect of the trial judge’s ruling was to deprive the jury of a potential explanation for why the collapsed lung was not seen on the first set of x-rays. However, that evidence would not have established that Thomas did in fact have a collapsed lung that went undetected; it merely offered a possible explanation. The jury also had Thomas’s uncontradicted evidence that he was not in another altercation before the second set of x-rays. Finally, the jury had Dr. Reid’s evidence of the injuries she observed the early morning of August 1, and photographs and a videotape that were taken on August 2, by the police and that clearly depict Thomas’s numerous injuries. Since the jury was not prepared to convict the respondent in the face of this evidence I am not satisfied to the required degree of certainty that had Dr. Reid’s additional evidence been admitted the verdict would have been different. [73] Accordingly, I would dismiss the appeal. Signature: “M. Rosenberg J.A.” “I agree Robert P. Armstrong J.A.” “I agree David Watt J.A.” RELEASED: “MR” August 18, 2008 [1] See s. 2 of the Controlled Drugs and Substances Act, S.C. 1996, c. 19, which defines trafficking to include “give, transfer, transport, send or deliver”. [2] The timid juror instruction was occasionally given by trial judges as part of the reasonable doubt instruction along these lines: “The doubt, I emphasize, must be reasonable. It must be a reasonable doubt based upon the evidence in this case that you have heard. It must not be a speculative, fanciful, imaginary or illusionary doubt conjured up in the mind of a timid juror so that he or she may avoid their plain duties or responsibilities.”